RE P (A CHILD: RESIDENCE ORDER:
CHILD’S WELFARE) [1999] 2 FCR 289 (CA) (a) Question:
When and upon what basis may the court restrict the making
of future applications pursuant to Section 91(14) of the Act?
(b) Facts:
An orthodox Jewish family had concluded shortly after birth
that they could not care for a daughter with Down’s
Syndrome; the local authority, after a long and fruitless
search for orthodox Jewish foster parents, had placed the
child with non-practising Roman Catholics. At the end of lengthy
litigation (the child having been in this house for 8 years)
the judge refused the parents’ application for residence,
made an order for restricted contact and also an order under
Section 91(14). (c) Decision:
(upholding the judge)
That although no real criticism could be made of the parents’
conduct of proceedings, the order was required and the court
offered guidance (pp 592-3/310-1);
i. Section 91(14) should be read as subject to Section 1.
ii. The power under Section 91(14) is an exercise of discretion.
iii. It is a significant intrusion on legal rights.
iv. The order should therefore be the exception and not the
rule.
v. It is a useful weapon of last resort in cases of repeated
and unreasonable applications.
vi. If the child’s welfare demands it, however, it is
not confined to such cases.
vii. It may be used if two conditions are satisfied: first,
the case goes beyond the usual problems of setting-in time
and hostility; and secondly in the absence of an order if
the child or primary carers will be subject to ‘unacceptable
strain’.
viii. The court may act of its own motion provided parties
have been given the opportunity to be heard.
ix. The order may be with or without restriction of time.
x. The court should specify the type of application which
is to be restrained as well as the duration of the order.
xi. Only most exceptionally should the order be made ex parte.(d) Comment:
i. This case hopefully resolves many of the difficulties experienced
in practice based on the courts’ understanding of the
line of cases culminating in B v B [1997] 1 FLR 139 (Leading
Case 97/2 in this series).
ii. No longer is it necessary to look only (or even mainly)
at the conduct of proceedings provided that the exceptional
nature of the order is borne in mind.
iii. It is important in making an order to specify what types
of applications are being restricted and for how long.
iv. The Court of Appeal is satisfied that an order under Section
91(14) does not contravene the E.C.H.R.
v. Any application for leave under Section 91(14) to make
an application should in the first instance be made ex parte;
the court can then decide whether to refuse the application
or list it for an inter partes hearing with or without statements.
It is possible to request a Section 7 report (particularly
if the child is older) before finally determining the application
for leave.
vi. The test to be applied on such an application for leave
is - "...the applicant must persuade the judge that he
has an arguable case with some chance of success. That is
not a formidable hurdle to surmount".

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